EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MALINOVSKIY v. RUSSIA
(Application No. 41302/02)
JUDGMENT <*>
(Strasbourg, 7.VII.2005)
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Malinovskiy v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having deliberated in private on 16 June 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 41302/02) against
the Russian Federation lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by a Russian national Mr Igor
Mikhailovich Malinovskiy ("the applicant") on 20 October 2002.
2. The Russian Government ("the Government") were represented
by Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
3. On 13 May 2003 the Court decided to communicate the
application to the Government. Under the provisions of Article 29
з 3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. The circumstances of the case
4. The applicant was born in 1962 and lives in Staryy Oskol,
Belgorod Region.
5. In 1986 the applicant was engaged in emergency operations at
the site of the Chernobyl nuclear plant disaster. The applicant's
entitlement to certain State benefits is linked to the category of
disability assigned to him due to deterioration of his health as a
result of these events.
6. In 1999 the applicant applied for free accommodation from
the State. His housing conditions were recognised as substandard
and he was placed on a waiting list.
7. In 2001 the applicant brought proceedings against the
Belgorod Regional Administration to challenge its failure to make
accommodation available to him within three months after placing
him on a waiting list.
8. On 10 December 2001 the Starooskolskiy Town Court of the
Belgorod Region ruled in the applicant's favour. It referred to
the Law On Social Protection of Citizens Exposed to Radiation as a
Result of the Chernobyl Nuclear Power Station Explosion, noted
that the applicant's accommodation was substandard and ordered the
Belgorod Regional Administration to provide the applicant with a
flat "in accordance with the applicable standard conditions and in
accordance with the order of precedence on the waiting list". This
judgment was not appealed against, and enforcement proceedings
were instituted on 6 February 2002.
9. On 28 June 2002 the bailiffs' service informed the applicant
about the lack of progress in the enforcement proceedings due to
the insufficient number of flats allocated to the waiting list. It
advised the applicant to ask the Starooskolskiy Town Court for
replacement of the in-kind award under the judgment of 10 December
2001 with the equivalent sum of money.
10. On 9 October 2002 the bailiffs' service informed the
applicant that it had sought instructions from the Starooskolskiy
Town Court concerning the enforcement of the judgment of 10
December 2001. In particular, it asked to set a time-limit, within
which the authorities were to provide a flat to the applicant.
11. On 2 December 2002 the Oktyabrskiy District Court of
Belgorod examined the applicant's complaint about the failure of
the bailiffs' service to enforce the judgment of 10 December 2001.
It found no fault on the part of the service because the judgment
had not set a time-limit for enforcement.
12. On 31 July 2003 the Presidium of the Belgorod Regional
Court conducted supervisory review of the judgment of 10 December
2001. It held that the statutory time-limit of three months was
applicable and not amenable to further extensions. It removed the
condition that the flat was to be provided in accordance with the
order of precedence on the waiting list and upheld the remainder
of the judgment.
13. By March 2004 the applicant was still waiting for
accommodation.
14. According to the applicant, on 5 March 2004 a group of five
people, including the applicant, went on a hunger strike to
protest against the poor social protection of the Chernobyl
victims. The mayor of Staryy Oskol launched a public call for
donations in support of the protestors and collected the amount
necessary to provide all of them with housing. The applicant
submitted a statement signed by four other protesters in support
of his version of events.
15. According to the Government, on 2 July 2004 the mayor of
Staryy Oskol decided, pursuant to the judgment of 10 December
2
2001, to provide the applicant with a flat measuring 86.39 m
valued at 834,960 Russian roubles.
16. On 8 July 2004 the applicant received from the mayor an
occupancy voucher in respect of the flat assigned to him. He found
the flat satisfactory.
17. No decision appears to have been taken as to the pending
enforcement proceedings.
II. Relevant domestic law
A. Entitlement to State housing
18. The Law On Social Protection of Citizens Exposed to
Radiation as a Result of the Chernobyl Nuclear Power Station
Explosion (No. 1224-I of 15 May 1991, as amended at the material
time) set out that disabled victims of the Chernobyl explosion
were to be granted social housing within three months of
submitting an appropriate application, provided that their
existing accommodation did not comply with the minimum housing
standards (section 14 (3)).
B. Enforcement proceedings
19. Section 9 of the Enforcement Proceedings Act (Law No. 119-
FZ of 21 July 1997) provides that a bailiff's order on institution
of enforcement proceedings must fix a time-limit for the
defendant's voluntary compliance with a writ of execution. The
time-limit may not exceed five days. The bailiff must also warn
the defendant that coercive action will follow should the
defendant fail to comply with the time-limit. Pursuant to section
13, the enforcement proceedings must be completed within two
months of the receipt of the writ of execution by the bailiff.
C. Implementation of the right to a "social tenancy"
20. The RSFSR Housing Code (Law of 24 June 1983, effective
until 1 March 2005) provided that Russian citizens were entitled
to possess flats owned by the State or municipal authorities or
other public bodies, under the terms of a tenancy agreement
(section 10). Certain "protected" categories of individuals
(disabled persons, war veterans, Chernobyl victims, police
officers, judges, etc.) had a right to priority treatment in the
allocation of flats.
21. A decision on granting a flat was to be implemented by way
of issuing the citizen with an occupancy voucher (ордер на жилое
помещение) from the local municipal authority (section 47). The
voucher served as the legal basis for taking possession of the
flat designated therein and for the signing of a tenancy agreement
between the landlord, the tenant and the housing maintenance
authority (section 51, and also Articles 672 and 674 of the Civil
Code).
22. Members of the tenant's family (including the spouse,
children, parents, disabled dependants and other persons) had the
same rights and obligations under the tenancy agreement as the
tenant (section 53). The tenant had the right to accommodate other
persons in the flat (section 54). In the event of the tenant's
death, an adult member of the tenant's family succeeded him or her
as a party to the tenancy agreement (section 88).
23. Flats were granted for permanent use (section 10). The
tenant could terminate the tenancy agreement at any moment, with
the consent of his or her family members (section 89). The
landlord could terminate the agreement on the grounds provided for
by law and on the basis of a court decision (sections 89 - 90). If
the agreement was terminated because the house was no longer fit
for living in, the tenant and family were to receive a substitute
flat with full amenities (section 91). Tenants or members of their
family could be evicted without provision of substitute
accommodation only if they "systematically destroyed or damaged
the flat", "used it for purposes other than residence" or
"systematically breached the [generally accepted rules of conduct]
making life with others impossible" (section 98).
24. The tenant had the right to exchange the flat for another
flat in the State or municipal housing, including across regions
(section 67). An exchange involved reciprocal transfer of rights
and obligations under the respective tenancy agreements and became
final from the moment of issuing new occupancy vouchers (section
71). "Speculative" or sham exchanges were prohibited (section
73(2)).
D. Rent for State housing
25. The Federal Housing Policy Act (Law No. 4218-I of 24
December 1992) provides that the payments for a flat comprise (i)
a housing maintenance charge, (ii) a housing repair charge, and,
in the case of tenants only, (iii) rent (section 15). The
maintenance and repair charges do not depend on the flat's
ownership, whether private or State. Rent is fixed by regional
authorities, taking into account the surface area and quality of
the housing. It is usually considerably lower than free-market
rent. For example, the highest monthly rent for municipal housing
in Moscow is 80 kopecks (0.02 euro) per square metre (Resolution
of the Moscow Government No. 863-PP of 7 December 2004).
E. Privatisation of State housing
26. In 1991, the Privatisation of Housing Act (Law No. 1541-I
of 4 July 1991) was adopted (it will remain effective until 31
December 2006). It grants Russian citizens the right to acquire
title to State and municipal-owned flats of which they have taken
possession on the basis of a social tenancy agreement (section 2).
The acquisition of title does not require any payment or fee
(section 7). The right to privatisation can be exercised once in a
lifetime (section 11) and requires the consent of all adult family
members.
THE LAW
I. Alleged violation of Article 6 з 1
of the Convention and Article 1 of Protocol No. 1
to the Convention
27. The applicant complained that the prolonged non-enforcement
of the judgment of 10 December 2001, as amended on 31 July 2003,
violated his "right to a court" under Article 6 з 1 of the
Convention and his right to the peaceful enjoyment of possessions
as guaranteed in Article 1 of Protocol No. 1 to the Convention.
These Articles, in so far as relevant, provide as follows:
Article 6 з 1
"In the determination of his civil rights and obligations...,
everyone is entitled to a fair... hearing... by [a]...
tribunal..."
Article 1 of Protocol No. 1
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
A. Admissibility
28. The Government considered the application manifestly ill-
founded, claiming that, pursuant to the judgment of 10 December
2001, the applicant was to be provided with accommodation "in
accordance with the order of precedence on the waiting list". As
of 1 July 2003 the applicant had been No. 193 on the waiting list.
The Government referred, in particular, to budgetary constraints
inherent in providing State-funded accommodation. They finally
claimed that the judgment had been duly enforced.
29. The applicant did not accept that the budgetary constraints
had justified the non-enforcement of the judgment. He also claimed
that the Government's interpretation of the judgment of 10
December 2001 would have required him to wait indefinitely for his
turn on the waiting list. He considered that the need to preserve
the order of precedence did not absolve the authorities from the
obligation to respect the statutory time-limit of three months. In
this connection he noted that the judgment of the Presidium of the
Belgorod Regional Court dated 31 July 2003 had removed a reference
to the order of precedence on the waiting list from the judgment
of 10 December 2001. As to the current situation, the applicant
considered that, even though the mayor provided him with a flat,
he was still a victim of the State's failure to enforce a judgment
in his favour.
30. The Court notes that the judgment of 10 December 2001
imposed a condition on provision of housing to the applicant, and
notably that the "order of precedence on the waiting list" be
respected. The applicant's view that it was also subject to the
statutory time-limit of three months has no explicit ground in the
judgment. It was not until 31 July 2003 that the Presidium of the
Belgorod Regional Court clarified that the applicant was entitled
to receive a flat within three months. Thus, leaving aside the
alleged discrepancy between the operative part of the judgment of
10 December 2001 and the relevant statutory provisions, it is
clear that at least after the decision of 31 July 2003 the
authorities had no legitimate ground to delay its enforcement
proceedings for more than three months.
31. Nevertheless, between July 2003 and July 2004 no steps
appear to have been taken by the authorities to enforce the award.
Moreover, even after the flat had been granted by the mayor, no
formal acknowledgment has been made that the judgment could now be
deemed enforced, or that the applicant no longer had any
outstanding entitlement. Thus, as there remains uncertainty as to
the state of the once instituted execution proceedings, the Court
considers that the applicant retains his victim status.
32. The Court concludes, based on the parties' submissions,
that the application is not manifestly ill-founded within the
meaning of Article 35 з 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Article 6 з 1 of the Convention
33. The parties did not make separate comments on the merits of
the complaint under Article 6 з 1 of the Convention.
34. The Court reiterates that Article 6 з 1 secures to everyone
the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal; in this way it
embodies the "right to a court", of which the right of access,
that is the right to institute proceedings before courts in civil
matters, constitutes one aspect. However, that right would be
illusory if a Contracting State's domestic legal system allowed a
final, binding judicial decision to remain inoperative to the
detriment of one party. It would be inconceivable that Article 6 з
1 should describe in detail the procedural guarantees afforded to
litigants - proceedings that are fair, public and expeditious -
without protecting the implementation of judicial decisions; to
construe Article 6 as being concerned exclusively with access to a
court and the conduct of proceedings would be likely to lead to
situations incompatible with the principle of the rule of law
which the Contracting States undertook to respect when they
ratified the Convention. Execution of a judgment given by any
court must therefore be regarded as an integral part of the
"trial" for the purposes of Article 6 (see Burdov v. Russia, No.
59498/00, з 34, ECHR 2002-III, and Hornsby v. Greece, judgment of
19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510,
з 40).
35. The Court further recalls that it is not open to a State
authority to cite the lack of funds or other resources as an
excuse for not honouring a court award. Admittedly, a delay in the
execution of a judgment may be justified in particular
circumstances, but the delay may not be such as to impair the
essence of the right protected under Article 6 з 1. The applicant
should not be prevented from benefiting from the success of the
litigation on the ground of alleged financial difficulties
experienced by the State (see Burdov v. Russia, cited above, з
35).
36. The Court accepts that the judgment of 10 December 2001, as
it had been worded prior to 31 July 2003, did not require an
immediate grant of a flat because its implementation was
conditional on prior allocation of flats to the persons placed on
the waiting list before the applicant. However, the amendment of
31 July 2003 left no ambiguity as to the time-limit for
enforcement of the award. The Government have not advanced any
justification for the failure to enforce it, other than a generic
reference to budgetary constraints.
37. As to the circumstances relating to the granting of a flat
by the mayor, the Court notes that the parties' versions of events
differ. Whereas the applicant points out that the flat was
provided to him as a result of the extraordinary intervention
brought about by the hunger strike, the Government claim that the
flat was granted in the framework of the enforcement proceedings.
The Government, however, have not submitted any documents
concerning the enforcement proceedings to which they refer. The
applicant's statement, by contrast, has been countersigned by his
fellow protesters. The Court therefore finds no factual basis for
the Government's version of events and assumes that the flat was
granted as a consequence of the mayor's extraordinary
intervention.
38. The Court observes that no attempts have been made by the
authorities before the applicant's hunger strike to provide him
with housing due to him under the judgment, or to make alternative
arrangements if this was impossible. Even though due to the
mayor's humanitarian reaction in response to the applicant's
demonstration, a flat has eventually been granted to him, the
Court considers that his interference could not substitute
enforcement of the judgment in due legal process.
39. Consequently, by failing for a substantial period of time
to take the necessary measures to comply with the final judicial
decisions in the present case, the Russian State authorities
deprived the provisions of Article 6 з 1 of their useful effect.
40. There has accordingly been a violation of Article 6 з 1 of
the Convention.
2. Article 1 of Protocol No. 1 to the Convention
41. The Government submitted that the flat claimed by the
applicant could not be viewed as his "possessions" for the
purposes of Article 1 of Protocol No. 1 because the judgment of 10
December 2001 required the provision of a flat not in the
applicant's ownership but under a social tenancy agreement, funded
at the expense of the budget. The applicant made no comments on
this aspect.
42. The Court reiterates first that the right to any social
benefit is not included as such among the rights and freedoms
guaranteed by the Convention (see, for example, Aunola v. Finland
(dec.), No. 30517/96, 15 March 2001). The Court further recalls
that a right to live in a particular property not owned by the
applicant does not as such constitute a "possession" within the
meaning of Article 1 of Protocol 1 to the Convention (see H.F. v.
Slovakia (dec.), No. 54797/00, 9 December 2003; Kovalenok v.
Latvia (dec.), No. 54264/00, 15 February 2001, and J.L.S. v. Spain
(dec.), No. 41917/98, 27 April 1999).
43. However pecuniary assets, such as debts, by virtue of which
the applicant can claim to have at least a "legitimate
expectation" of obtaining effective enjoyment of a particular
pecuniary asset (see Pine Valley Developments Ltd and Others v.
Ireland, judgment of 29 November 1991, Series A No. 222, p. 23, з
51; Pressos Compania Naviera S.A. and Others v. Belgium, judgment
of 20 November 1995, Series A No. 332, p. 21, з 31, and, mutatis
mutandis, S.A. Dangeville v. France, No. 36677/97, зз 44 - 48,
ECHR 2002-III) may also fall within the notion of "possessions"
contained in Article 1 of Protocol No. 1. In particular, the Court
has consistently held that a "claim" - even concerning a
particular social benefit - can constitute a "possession" within
the meaning of Article 1 of Protocol No. 1 if it is sufficiently
established to be enforceable (see Burdov v. Russia, cited above,
з 40, and Stran Greek Refineries and Stratis Andreadis v. Greece,
judgment of 9 December 1994, Series A No. 301-B, p. 84, з 59).
44. Turning to the facts of the present case, the Court notes
that by virtue of the judgment of 10 December 2001 the town
council was to put at the applicant's disposal a flat with certain
characteristics. The judgment did not require the authorities to
give him ownership of a particular flat, but rather obliged them
to issue him with an occupancy voucher in respect of any flat
satisfying the court-defined criteria. On the basis of the
voucher, a so-called "social tenancy agreement" would have been
signed between the competent authority and the applicant, acting
as the principal tenant on behalf of himself and the members of
his family (see paragraph 21 above). Under the terms of a "social
tenancy agreement", as established in the RSFSR Housing Code and
the applicable regulations, the applicant would have had a right
to possess and make use of the flat and to privatise it in
accordance with the Privatisation of State Housing Act.
45. Accordingly, from the time of the judgments of 10 December
2001 and 31 July 2003 the applicant had an established "legitimate
expectation" to acquire a pecuniary asset. The judgment was final
as no ordinary appeal lay against it, and enforcement proceedings
were instituted.
46. The Court is therefore satisfied that the applicant's claim
to a "social tenancy agreement" was sufficiently established to
constitute a "possession" falling within the ambit of Article 1 of
Protocol No. 1.
47. The Court finds that the fact that it was impossible for
the applicant to obtain the execution of the judgment of 10
December 2001 as amended by the judgment of 31 July 2003 for a
substantial period of time constituted an interference with his
right to peaceful enjoyment of his possessions, for which the
Government have not advanced any plausible justification (see
paragraph 36 above).
48. Accordingly, there has been a violation of Article 1 of
Protocol No. 1.
II. Application of Article 41 of the Convention
49. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of
the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
50. The applicant claimed 50,000 euros (EUR) in respect of
compensation for non-pecuniary damage.
51. The Government submitted that the applicant's claims were
excessive, arguing that if the Court decided to make an award it
should not exceed the amount awarded in the Burdov v. Russia case.
52. The Court considers that the applicant must have suffered
certain distress and frustration resulting from the State
authorities' failure to enforce a judgment in his favour. However,
the amount claimed appears excessive. The Court takes into account
the award made by the Court in the Burdov v. Russia case (cited
above, з 47), the nature of the award whose non-enforcement was at
stake in the present case, namely a benefit linked to the
applicant's disability as a Chernobyl-victim, the length of the
enforcement proceedings and other relevant aspects. Making its
assessment on an equitable basis, it awards the applicant EUR
3,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
53. The applicant made no claims under this head.
C. Default interest
54. The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 з 1 of
the Convention;
3. Holds that there has been a violation of Article 1 of
Protocol No. 1;
4. Holds
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final
according to Article 44 з 2 of the Convention, EUR 3,000 (three
thousand euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that
may be chargeable on that amount;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points;
5. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 7 July 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
Santiago QUESADA
Deputy Registrar
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